North Dakota Supreme Court: An Officer's Camera Is More Trustworthy Than His BS Testimony

from the fuzz-getting-caught-by-the-fuzz dept

While body-worn cameras have mainly proven to be a boon for prosecutors, rather than the all-purpose accountability tools many of us thought they would be [raises hand sheepishly], the mere existence of more recordings is still a net gain for the general public.

When cops are doing the recording, there’s always a chance footage that disputes their narrative or discredits their testimony may go missing (or never recorded at all). But sometimes everything remains intact and, to officers’ dismay, works against them when they’re lying about stuff. Courts have always tended to give cops more credence than defendants in criminal trials, but the increase in recordings has freed courts to defer to the witness with no skin in the game: the recording device.

This doesn’t always happen. Sometimes judges would rather believe cops than their own eyes. It happened in this case. Fortunately for the person challenging a stop that resulted in criminal charges, the second court to review the video decided the recording was far more credible than the officer. (via

A stop that resulted in DUI charges for Michael Boger was predicated on the officer’s claim that the rear license plate wasn’t illuminated. While it may have been true that Boger was under the influence and behind the wheel, it helps to remember that law enforcement isn’t an ends-based operation. The means count, especially if we want the Constitution to mean anything.

Officers need to have a reason to pull over people and subject them to at least temporary detention. Courts aren’t necessarily opposed to a little pretext. But the pretext needs to hold up. And if it’s going to hold up, the stated reason for the stop needs to be credible, rather than immediately undercut by an officer’s own body camera.

Here’s how and why the stop was initiated, as recounted in the North Dakota Supreme Court’s decision [PDF]:

Prior to the traffic stop, the arresting officer was traveling eastbound on Burdick Expressway in his patrol vehicle when he was passed by Boger’s vehicle traveling westbound on the same road. As Boger’s vehicle passed, the officer testified he looked in his driver’s side rear-view mirror and noticed Boger’s rear license plate area was not illuminated. The officer turned around to follow Boger’s vehicle. Once behind Boger’s vehicle, the officer testified he observed the rear license plate was still not illuminated. After approximately five to seven seconds of following Boger’s vehicle, the officer initiated a traffic stop.

The officer testified the rear license plate was not illuminated when he first observed Boger’s vehicle, was not illuminated when he was following Boger’s vehicle, and the license plate illumination light was not functioning during the traffic stop.

The officer’s body camera footage of the stop was entered into evidence. It did not show what the officer testified to under oath.

The video recorded by the officer’s body-worn camera stands in direct conflict with this testimony. As the officer approaches the rear of Boger’s vehicle, the video clearly depicts the rear bumper and license plate for five seconds beginning at the indicated time of T05:38:35Z.1 There is a single white light immediately to the right of the license plate that is fully illuminated. The rear of the vehicle, including the license plate and the light, appear clean.

The ND Supreme Court even includes some frame grabs, which clearly show the license plate light is operational and lit.

The district court ignored all of this, citing the law (which requires it to be “visible from 50 feet away”) and the officer’s insistence that the light observed lighting the license plate originated from another source. It came up with this rationale for the stop, providing the cop with an argument he had failed to articulate.

“Based upon the testimony of [the officer], the alleged illumination did not render the rear license plate clearly legible to [the officer] as the vehicles passed each other.”

Bullshit, says the state Supreme Court. The cop never said anything about it being visible from several feet away. He claimed the light was not functioning at all — something completely contradicted by his own body camera footage. He also said nothing about it being illegible. All he said was the license plate was not illuminated by a license plate light. The video shows the license plate light was operational and lighting the license plate.

The officer’s testimony is inconsistent with the body camera video. The still images from the video clearly show the officer’s testimony is contrary to the video evidence. The images show a license plate light bright enough to reflect off the dark surface below the light.

When there are material factual disputes, it’s time to roll the tape.

The video evidence in this case clearly rebuts the officer’s testimony. We agree with the Indiana Supreme Court that in situations “where the video evidence indisputably contradicts the trial court’s findings, relying on such evidence and reversing the trial court’s findings do not constitute reweighing.” Love, 73 N.E.3d at 699. We conclude the court’s finding that the license plate was not illuminated is contrary to the manifest weight of the evidence.

And there’s no good faith reward waiting for the officer at the end of this decision. While reasonable mistakes of law can sometimes salvage bad stops, it’s not happening here.

While video confirmation of mistakes do not render the mistake of fact per se objectively unreasonable, this mistake of fact would have had to persist from the initial contact with the driver through the length of the stop. Based on the record presented to the district court, we conclude a mistake of fact regarding whether the rear license plate was illuminated was objectively unreasonable.

The stop is unjustified and the defendant will be allowed to withdraw his conditional guilty plea. That’s what should happen when testimony is contradicted by recordings, especially those made and controlled by the law enforcement officer providing the testimony. And there’s a message being sent to lower courts: when determining the credibility of witnesses, you’re doing no one any favors by deciding cops are more trustworthy than their cameras.

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Comments on “North Dakota Supreme Court: An Officer's Camera Is More Trustworthy Than His BS Testimony”

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Anonymous Coward says:

The stop is unjustified and the defendant will be allowed to withdraw his conditional guilty plea.

…and the cop will be charged with perjury and fired? Because if not, …

And there’s a message being sent to lower courts: when determining the credibility of witnesses, you’re doing no one any favors by deciding cops are more trustworthy than their cameras.

…the message being sent to lower courts, and to cops, would be that there’s no penalty for trying to use illegal means to convict someone. At worst, the conviction might be thrown out.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Is it any wonder cops hate cameras so much?

‘I reject your reality and substitute my own!’ might make for a funny quip in a tv show but it should never be how a court decides how to issue a ruling.

I’m glad that at least the second court wasn’t willing to bend over backwards to protect a lying cop who got caught lying though it’s more than a little disturbing that the first one was, as if they’re willing to ignore video evidence that shows one side is wrong what other things are they willing to/have ignored in the past because it didn’t favor a particular side?

This comment has been deemed insightful by the community.
Bobvious says:

Re: I wish we could see the video itself...

Have a look at both stills. To the right of the license plate, you can see the round light embedded in the bumper. You can also see the reflection of the light on the step below the plate, and above the tow-hitch. If it’s visible and clearly discernible against the strong headlamps of the police car, it is bright enough to function as required. No case to answer.

It’s likely the cop was expecting to see the light on the LEFT side of the plate, but there isn’t one visible.

No case for the driver to answer for. Just another liar in uniform.

Bobvious says:

Re: Re: I wish we could see the video itself...

Also. Look at the date and time. 5:38 am on the 25th November. Early morning in US winter in North Dakota (it’s practically Canada). See how the back window and side windows are covered in mist. Perhaps the cop car’s rear window is also misted. We can’t see that image. Atmospheric effects must be considered here.

Anonymous Coward says:

Cop /could/ be telling the truth.

The license plate is illuminated by a light to the side. But modern technology has many item that need to be visible coated in a retro-reflective coating. If so, that side illumination is nearly useless in making the plate visible at a distance. But that same plate would be quite visible in the headlights of a trailing car.

Flakbait (profile) says:

Re: Cop /could/ be telling the truth.

Nah. It’s not like state motor vehicle departments, the people who create license plates, from numbering pattern, background design and materials, don’t tell auto makers what they are up to. They have an association for just such things. And if a coating was applied after-market, A) the country’s entire law enforcement community knows about such a product, and B) it would/should have been in the report.

Anonymous Coward says:

Re: Cop /could/ be telling the truth.

The spirit of the law, I suspect comes from the past…before improvements to retro reflection coatings as well as being in written in an era without zoom cameras, and license plate readers. If a vehicle passed someone, say leaving the scene of a crime observers should be able to make out that uniquely (yeah right) identifying feature of a vehicle. This asshat looked in his side mirror through a tinted window on a foggy morning and is shocked that he couldn’t see something – bullcrap…it was a pretextual stop by a cop that likely KNOWS the citizen…or knows him to be a drunkard…or thought he recognized the vehicle. One of these ho-dunk towns where everyone knows each other…or was retaliatory in nature. Simply the cop picked and idiot excuse and lost…got caught…and illuminates (pun intended) the likelihood that this happens ALL THE TIME. And imagine all those that never got their ‘day in court’ to prove that officers are tax collectors under the guise of ‘helpful’.

Tionico says:

video proves cop lhying

That’s all fine and dandy. But what about this dirty copper? Did he not, as a witness about to testify, swear what he was about to say to be true, correct, and complete, (the truth the whole trut and nothing but the truth, so help me God?) under PENALTY OF PERJURY? The State Supreme COurt has openly foind that this copper LIED in his testimony given under oath. WHEN will the charge HIM wiht that CRIME?
Until this starts happening predictably, cops like this will predicatelby LIE.

jeramiah says:

same story but worse, gf nd help please

im in need of some help. i got stopped in a town in nd and this young cop that already had his two weeks in and was leaving for a new job had it out for me. he had his mind made up, wanted to take me to jail regardless of his findings. the whole stop was a farce, he was so confused and passed his confusion on to me. i blew in the pbt twice, both zeros. he proceeded to arrest me, i was shocked, i think the sheriffs were shocked but they let it happen. so he cited me for refusal and dui, none of it makes sense. hancuffed behind my back for hours. he didnt know what the hell he was doing. so of course i had my dot admin hearing today and my lawyer didnt touch on any of the obvious points, i felt at times she was his lawyer, and yes i paid for this representation. i couldnt believe all the lies and how ridiicoulous the cop sounded but i think she was having coffee or something cause non of it got brought up or questioned. i finally said something when he was saying i said i was on zanax, dont even know what that is. i said i took my prescription addereal at 8 in the morning, he kept useing words like used and such to try paint a picture, this is a dr prescribed medicine. anywho, i have body camm footage that contridicts a lot of his bullshit. nope that wasnt brought up by my lawyer for evidence for the hearing, mot sure why not. this case is rock solid for me. i had and expert on the effects of drugs and the sobriety tests write up a ton of questions all relevant to the case and none of them were touched on. i feel either somebody got to my lawyer or she =just doesnt give a shit. i need people to see this footage. i emailed the dot officer after the hearing of course cause i was just in shock. well not a good idea i guess. if im found guilty i loze my cdl for life, how is this justice. i feel as this cop is so out of touch and inexperinced hes a bigger accident waiting to happen. i dont want to see anymore injustice by our horseshit govt and police force. i need help, i know this case will take off and make waves. i want to give these dvds to the news or a copy. futher more there is about an hr in a half of footage missing where i was asking for another officer to come. i was getting freaked out. we sat in the parking lot of the correctional center for 40 min. none of this was brought up. i cant even pay anybody to care, iam a single father of two boys ive adopted, i cant afford to lose my liscense because of someones lack of better judgement. man im furious. i dont have the results of the dot hearing yet. somebody, anybody, i need some real assistance with this. please…. 6513036011

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